Toronto
2 min

Ignoring the courts

LIFE ON HOLD. John Robin Sharpe still waits for the final decision. Credit: Image by Xtra files

British Columbia continued to charge adult men with having anal sex with teens – even after the law had been ruled unconstitutional by three courts.



And the New Democratic Party government is lying about doing it.



In a letter, MLA Tim Stevenson – the province’s homo rights standard bearer – claims that his government’s approach for “several years now” has been not to charge those accused under the anti-gay sections of the anal intercourse law.



In 1998, Frank Kim was charged with four counts of anal intercourse.



But in the last few years, three courts – the Federal Court Of Canada, the Ontario Court Of Appeal and the Quebec Court Of Appeal have all struck down the anal intercourse law as discriminating against gay teenagers.



A second indictment against Kim, which also contained four counts of anal intercourse, was laid in 1999.



This last set of charges against Kim were later dropped.



Why? In December of that same year, BC Assistant Deputy Attorney-General Austin Cullen announced that Kim had filed a constitutional challenge to the law and that “further proceedings with respect to [the anal intercourse] charges were inappropriate in this particular case. Moreover, I am advised that the evidence pertaining to the [anal intercourse] counts was subsumed in the sexual assault counts, thus obviating the need to proceed with those charges.”



In other words, he seems to say that the anal intercourse law should only be used when the other sexual acts performed are perfectly legal.



Just a few months ago then, the assistant deputy attorney-general left the door open on prosecutions for engaging in consensual, non-exploitative anal intercourse.



Under the federal Criminal Code, the age of consent for oral and vaginal sex in 14. For anal sex, it’s 18. The penalty is up to 10 years’ imprisonment.



MLA Stevenson also claims that the criminal justice branch recently sent out an instruction to Crown counsel, confirming that charges of engaging in anal intercourse are not to be laid.



But Crown counsel are still free to lay charges for engaging in anal intercourse. So-called “practice bulletins” are not government policy; they are nothing more than legal opinions and are not binding.



The practice bulletin – which the ministry refuses to release – expresses the opinion that there is no substantial likelihood of conviction under the anal intercourse law, because the law would likely be found to be unconstitutional by the courts in British Columbia.



The BC justice system does sometimes receive orders that are binding; these are called “practice directives.”



British Columbia Attorney-General Andrew Petter has refused to discuss the issue.



The current federal anal sex law was passed in 1986, when then-justice minister, the Tory Ray Hnatyshyn, asked MPs for speedy passage of the bill so that “our children… can grow up to be strong, straight and normal human beings.”



When attacking men they perceive to be gay, bashers often yell “bum boy,” “butt fucker” and “fudge packer.”



– With files from Garth Barriere